An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 15 October 2002
No. 97 CVD 1317
Appeal by plaintiff from order entered 19 September 2001 by
Judge Jonathan L. Jones in District Court, Catawba County.
in the Court of Appeals 30 September 2002.
Crowe & Davis,
Sigmon, Sigmon, Isenhower & Poovey, by W. Gene Sigmon, for
Plaintiff and defendant, who were never married to each other,
are the parents of a minor child born on 11 July 1991.
filed a complaint seeking a child support order in May 1997.
plaintiff and was quite dependent on his parents to help in
providing care for the minor child.
The trial court also found
plaintiff was married and had a stepdaughter.
The court awarded
joint custody of the minor child to the parties in an order entered
-24 January 1999, granting primary custody of the minor child to
plaintiff and visitation to defendant.
The trial court also
ordered defendant to pay back child support, continuing child
support, and one-half of the minor child's uninsured medical
Defendant filed a motion in the cause on 4 January 2001
seeking modification of the custody order on the basis of an
alleged substantial change in circumstances.
motion in the cause on 13 June 2001.
He filed an amended
Plaintiff filed a motion in
the cause for contempt on 7 August 2001 in which she asserted
defendant had willfully failed to pay one-half of the minor child's
uninsured medical expenses.
She also filed a motion for Rule 11
The trial court heard testimony from both parties as well as
from the minor child's stepmother, school principal and maternal
Based on the evidence presented, the trial court found the
following facts in its 19 September 2001 order:
4. That at the time of the prior hearing the
Defendant was living with his parents and was
quite dependant on his parents to help in
providing care for the minor child. . . .
. . .
6. That at the time of the January 3rd Order
stepdaughter by her husband.
7. The evidence indicates that there has been
a change of circumstances in the Defendant's
marital status and Defendant's family status,
including the extended family and the changes
are to the benefit of the minor child.
8. The Defendant is now married to Natalie
9. The Defendant and Natalie Howard Gabriel
now own a three bedroom, two bath house off of
Grassy Creek Road, in Catawba County, North
. . .
11. That at the time of the January 3rd
hearing the Defendant did not own a residence
and was dependant upon his parents for a
child. . . .
12. That the Plaintiff's marital situation has
changed after the entry of the January 3, 1999
Order in that the Plaintiff and her husband
experienced marital difficulties and are now
. . .
17. That since the entry of the prior Order of
this Court, the minor child has established a
pattern of tardiness. That at the time of the
hearing on January 3, 1999, the minor child
had fourteen or fifteen tardies.
the school year 1999 the number of tardies was
forty and in the 2000 - 2001 school year 44
18. That the minor child has no bedtime curfew
and has a pattern of late bedtimes.
Plaintiff testified that football practice was
the cause [of] the tardies but the Court finds
as a fact that the tardies also occur when
there is no football practice.
19. That the Plaintiff has a continuing
inability to make a ten year old child get up
to get to school on time and the tardies are a
reflection of late night bedtimes.
20. That the Plaintiff is an area trainer in
cosmetics for Bobbie Brown Cosmetics and in
her employment travels extensively. . . .
That on a regular basis Plaintiff travels
twenty days per month with an average of two
to three or four hours of travel time per day.
That the extensiveness of Plaintiff's travels
makes it difficult for the Plaintiff to spend
-4the necessary time with homework and is
another cause of the minor child's inability
to get to bed on time.
21. That the work records reflect as a fact
that a good portion of her work includes
Saturday work and that twenty-five percent of
this occurs while she has the child in her
. . .
24. The Plaintiff and the Defendant have
disagreements over allowing the minor child to
ride trail bikes and that on June 13, 2001 the
minor child was involved in a motorcycle
accident when the Plaintiff was riding the
minor child on a trail bike. That the minor
child received fractures to his ankle and did
not receive medical attention for three days.
That the Defendant father was not notified and
the Plaintiff's sister took the minor child to
the doctor even though the prior Order
required that substantial medical decisions
involving the minor child be communicated to
the other party.
25. That on one occasion in September 2000 the
minor child experienced disciplinary problems
with a substitute teacher.
That the minor
child continues to have difficulty following
school rules and regulations involving getting
to school on time and behavior in the
26. That the minor child is in need of
stability and the need to have one place as
the primary residence. That the minor child
needs to have a place that he considers where
he lives as his home and the other residence a
place of visitation.
27. That the Defendant's home is now more
stable than the Plaintiff's home.
Based on these and other findings, the trial court concluded that
there had been a substantial change of circumstances affecting the
welfare of the minor child and the best interest of the minor child
would be served by a transfer of the primary residence and physical
-5custody to defendant.
The trial court granted defendant primary
Plaintiff appeals from the trial court's order.
Plaintiff first specifically argues the evidence does not
support findings of fact 17-19 and 24-27. She contends findings of
fact 17, 18, 23, 24 and 25 do not have any evidentiary predicate.
She states "there is no connection between tardies, curfew, or lack
thereof, and any detrimental effect on this minor child" and "the
recalcitrance in getting up in the morning adversely affects him."
Plaintiff argues that while the lack of notification to defendant
about the minor child's ankle fractures "may have been a technical
violation of the court's previous order, . . . it was not such a
horrific mistake as to justify a change in custody."
that defendant's motion in the cause did not raise stability as an
issue and that the trial "court merely presupposes that stability,
Plaintiff asserts the trial court abused its discretion and its
decision should be reversed.
A trial court "is vested with broad discretion in cases
involving child custody." Pulliam v. Smith, 348 N.C. 616, 624, 501
S.E.2d 898, 902 (1998).
The trial court "'has the opportunity to
see the parties in person and to hear the witnesses,'" Falls v.
Falls, 52 N.C. App. 203, 209, 278 S.E.2d 546, 551 (quoting Brooks
v. Brooks, 12 N.C. App. 626, 630, 184 S.E.2d 417, 420 (1971)),
disc. review denied, 304 N.C. 390, 285 S.E.2d 831 (1981), and its
-6findings turn on the witnesses' credibility in large part. Brandon
v. Brandon, 132 N.C. App. 646, 652, 513 S.E.2d 589, 593 (1999).
When competent evidence supports the trial court's findings of
fact, they are binding on appeal.
Sain v. Sain, 134 N.C. App. 460,
464, 517 S.E.2d 921, 925 (1999).
The trial court heard testimony from defendant and the school
principal as to the minor child having forty-four tardies during
the 2000-2001 school year, which the school principal stated was
His school and attendance records were introduced into
evidence, showing the minor child also had forty tardies during the
Plaintiff testified the minor child's bedtime
"usually is around 10:00, sometimes 10:30[,]" but she stated it was
not a rule that he had to be in bed by 10:30 p.m.
She admitted "it
is difficult to get [the minor child] up and get him to school."
Although plaintiff attributed the tardies to the minor child's
football practice, she testified football practice occurred from
August until the end of December.
Plaintiff conceded the minor child's report card contained the
comment that he "has a hard time following school rules," and she
described his misconduct as being out of his seat and talking
during class activities.
Both the school principal and plaintiff
testified to one discipline incident in which the minor child was
sent to the school office.
Although defendant was thirty minutes away at work, plaintiff
had her sister take the minor child for medical attention for
ankle fractures and did not notify defendant.
Our review of the
-7record shows competent evidence in the form of the testimony of the
parties, the maternal aunt and the school principal, along with the
school, attendance and work records entered into evidence, which
supports the challenged findings of fact.
Plaintiff next argues the trial court's findings of fact do
not support its conclusions of law and that the trial court erred
She contends the trial court abused its discretion in
determining that it was in the minor child's best interest for
defendant to have primary physical custody.
conclusions of law.
Sain, 134 N.C. App. at 464, 517 S.E.2d at 925.
Since the entry of the 1999 order, defendant has married and
purchased a home, while plaintiff and her husband have separated
due to marital difficulties.
The trial court noted plaintiff's
employment required extensive travel and contributed to the minor
child's inability to get to bed on time.
In addition to the
excessive number of tardies, the trial court found the minor child
also had difficulty in following school rules involving classroom
The trial court observed that plaintiff's sister took
the minor child for medical treatment of his ankle fractures and
that defendant was not notified.
Based upon its findings of fact,
the trial court concluded "there has been a substantial change of
circumstances affecting the welfare of the minor child and the best
interest of the minor child would be served by a transfer of the
primary residence and physical custody to the Defendant."
-8that the trial court's findings of fact are sufficient to support
The trial court did not err in granting custody of
the minor child to defendant.
We affirm the order of the trial court.
Judges WYNN and CAMPBELL concur.
Report per Rule 30(e).